denying qualified immunity when prison RICO V. DUCART 15 officials forced an inmate to sleep on a cell floor with constant illumination and noise from a light fixture
How later courts described this case
- denying qualified immunity when prison RICO V. DUCART 15 officials forced an inmate to sleep on a cell floor with constant illumination and noise from a light fixture
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION OCT 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHRISTOPHER A. JONES, No. 08-17677
Plaintiff - Appellant, D.C. No. 2:07-cv-01088-JCM-
GWF
v.
DWIGHT NEVEN; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted September 22, 2010 **
Before: WALLACE, HAWKINS, and THOMAS, Circuit Judges.
Christopher A. Jones (“Jones”), a Nevada state prisoner, appeals pro se from
the district court’s summary judgment for defendants in his 42 U.S.C. § 1983
action alleging that they violated his Eighth Amendment rights by exposing him to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
08-17677
unsafe levels of environmental tobacco smoke (“ETS”), forcing him to sleep on a
cell floor with constant illumination and noise from a light fixture, and failing to
inform him that he had tested positive for hepatitis C.
The district court converted the defendants’ motion to dismiss into a
summary judgment motion, but the defendants failed to serve on Jones any of the
evidence they submitted in camera in support of the motion. In addition, the
district court did not afford Jones an adequate opportunity to obtain and submit
rebuttal evidence. In particular, documents that the district court ordered attached
to Jones’s verified Amended Complaint do not appear in the district court’s record.
Moreover, the district court denied Jones’s motion to stay resolution of summary
judgment pending an opportunity for discovery under Rule 56(f) of the Federal
Rules of Civil Procedure. Consequently, Jones had no meaningful opportunity to
oppose summary judgment. See Program Eng’g, Inc. v. Triangle Publ’ns, Inc.,
634 F.2d 1188, 1193 (9th Cir. 1980) (“Generally where a party has had no previous
opportunity to develop evidence and the evidence is crucial to material issues in
the case, discovery should be allowed before the trial court rules on a motion for
summary judgment.”); see also Fed. R. Civ. P. 56(f); Rand v. Rowland, 154 F.3d
952, 960-61 (9th Cir. 1998) (en banc) (setting forth rights of a pro se prisoner faced
with summary judgment motion, including right to present rebuttal evidence).
2 08-17677
The district court concluded, alternatively, that Jones’s claims do not set
forth violations of constitutional rights that were clearly established and that
therefore defendants were entitled to qualified immunity. The Eighth Amendment
rights Jones claims defendants violated, however, were clearly established. See
Helling v. McKinney, 509 U.S. 25, 34-35 (1993) (ETS exposure can be actionable
under § 1983); Keenan v. Hall, 83 F.3d 1083, 1089-92 (9th Cir. 1996) (same re
excessive noise, 24-hour illumination, and inadequate ventilation); Broughton v.
Cutter Labs., 622 F.2d 458, 459-60 (9th Cir. 1980) (per curiam) (same re hepatitis
treatment); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (“medically
unacceptable” treatment delay can establish deliberate indifference). We decline to
consider, in the first instance, “whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.” See Saucier v. Katz,
533 U.S. 194, 202 (2001).
With the exception of the district court’s dismissal without prejudice of
Jones’s claim for professional negligence, which we affirm, we vacate the district
court’s order. On remand, the district court shall ensure that the defendants serve
on Jones a photocopy of each page of documentary evidence submitted for the
district court’s consideration. Such service on Jones shall be contemporaneous
with the submission of documentary evidence to the district court and shall be
3 08-17677
subject to any protective order the district court may choose to enter. The district
court should also grant Jones an opportunity to conduct discovery before it
resolves any summary judgment motion.
The clerk shall file Jones’s motion to cure deficiency in the record, which is
denied as moot.
VACATED in part, AFFIRMED in part, and REMANDED.
4 08-17677